Friday, December 11, 2009
Authority Arguers (Litigating Lawyers) Versus Authority Creators (Transactional Lawyers): It's Still All Outside-In
Posted by Jeff Lipshaw
Some time ago, I wrote an article, largely in reaction to an article Richard Posner had written on contract interpretation, suggesting that there was far less connection than commonly expected by lawyers between a “mutual intention of the parties” supposedly embodied in even a heavily negotiated contract and subsequent colorable disputes involving interpretation of that same contract (see The Bewitchment of Intelligence). Having immersed myself for the last several months in scholarship (such as it is) on consciousness, judgment, and wisdom, I now realize that Bewitchment merely took on one particular manifestation of the objective, rational model that is the teaching, scholarship, and practice of American law.
I am prepared to expand the thesis. I will defer exposition of my own articulation of the difference between arguments from authority and arguments from merit (in process) to Professor Geoffrey Samuel's (Kent, left) more sociological exposition of the same point: the reason it is hard to take law seriously as a “science” (and, I would add, the reason the explanatory so often blurs into the normative) is that law is, and has always has been, based on an “authority paradigm,” more akin to theology than to science. The authority paradigm is the key thing, because authority must come from somewhere: from the standpoint of mind, authority is "outside-in." That distinguishes it from wisdom and judgment, which, from the standpoint of mind, are "inside-out." (Pardon my Kantian tendencies here, but outside-in strikes me as legislating, or heteronomous, while inside-out strikes me as self-legislating, or autonomous.)
Let me bring this back to the practice of lawyering, rather than just the theory of law. We are in the midst of working through our curriculum on transactional skills, and the first building block is, invariably, “contract drafting.” I realize I am treading close to heresy here, and I don’t intend to suggest that contract drafting isn’t one of the transactional lawyer’s core skills. But it dawned on me (again) this morning, as I was reading an essay by Laura Dunham (University of St. Thomas, right) on business ethics in entrepreneurship, that even contract drafting (as a lawyering skill) fails to get at the critical difference between judgment and lawyering. Most of what lawyers think and do (at least classically) either in the litigation or the transactional setting constitutes a category error when it comes to the exercise of judgment (in the everyday and not judicial sense). As I argued in Objectivity and Subjectivity in Contract Law, the fundamental dividing line as between promise and contract doesn’t have to do with efficiency or morality; it has to do with objective versus subjective, or public versus private, or (perhaps?) inside-out versus outside-in.
The paradox of law in the litigation context is that both parties are praying to the same god for victory in the name of justice. The Europeans (like Luhmann or Derrida - at least in the latter's views on justice) expose an uncomfortable possibility: it is not an appeal to justice; it is an appeal to authority with the patina of justice. That’s what we teach first year lawyers: how to make an argument - the best ones being those that satisfy the Dworkinian standard of integrity: fit and justification (i.e., they give the best appearance of being not only just, but consistent with authority). Contract drafters aren’t authority arguers; they are authority creators (in the sense of the private law that is the law of contracts). There is no real connection between the contract and the later dispute (despite the arguments of Judge Posner, Professors Schwartz and Scott, and other rationalists), except in the sense that words that were written will come to constitute whatever “law” there is.
Judgment and wisdom, on the other hand, require that we step back from the authority paradigm (and perhaps also from the self-interest paradigm). That’s the quality that comes after first year doctrine, contract drafting, and deal skills. It means somehow teaching the inside-out rather than the outside-in. Now here’s the tough question: what are the academic and professional bona fides for teaching that advanced course?
December 11, 2009 in Abstracts Highlights - Academic Articles on the Legal Profession, Comparative Professions, Law & Society, Straddling the Fence, The Practice | Permalink | Comments (1) | TrackBack (0)
Tuesday, November 10, 2009
From the web page of the Ohio Supreme Court:
The Supreme Court of Ohio today announced the adoption of amendments governing out-of-state attorneys who want to appear temporarily in a proceeding in Ohio (pro hac vice). The amendments, which were adopted by a 6-1 vote by the Supreme Court, become effective Jan. 1, 2011.
Amendments to Gov. Bar R. XII of the Rules for the Government of the Bar will:
- Centralize the administration of pro hac vice admission through the Supreme Court’s Office of Attorney Services. Pro hac vice is a privilege granted by a tribunal to out-of-state attorneys not admitted to practice law in Ohio to appear before the tribunal on a limited basis.
- Establish basic criteria for appearing pro hac vice before a tribunal, including acknowledgement of Ohio’s attorney disciplinary rules and a statement that the attorney has not appeared more than three times in a calendar year in a pro hac vice capacity.
- Permit the administrative revocation of privileges to practice pro hac vice if the attorney does not comply with certain provisions of the rule.
- Require an out-of-state attorney to file an application and $100 annual registration fee before applying to appear pro hac vice.
Chief Justice Thomas J. Moyer and Justices Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp concurred in adopting the amendments. Justice Paul E. Pfeifer dissented.
Monday, August 24, 2009
Posted by Jeff Lipshaw
We don't endorse commercial products here (usually), and I'm sure I got this is a really a teaser so that the company, AbacusLaw, can sell law firm management software (they'd give the book away, I suspect, but one of the rules of marketing - ask our advanced legal studies people - is that if you give it away, people don't value it).
The book is called Dangerous Law Practice Myths, Lies, and Stupidity, and tells 35 little stories - with tltles like "The Two-Calendar Myth," "The Free Advice Myth" (again, no doubt why they are charging for the book), and "The Ivy-League Lawyer Myth" (I think Brown, Dartmouth, and Princeton need to take some umbrage here) - of what the authors contend are myths about law firm management. I leave it to you to decide if they are, but this isn't too bad, and certainly food for thought.
Saturday, August 22, 2009
Posted by Jeff Lipshaw
Paul Lippe, who has been an agent provocateur (or thought leader, as they say) on the subject of legal education, has a follow up to his original Am Law Daily commentary to which our Bill Henderson linked a while back. Follow the link and read it for yourself, but I'm not sure if the comments are available if you aren't a member of Paul's Legal OnRamp, so here's mine if you want to hit the "back" button on the browser after you read his column:
* * *
Like Ray [Campbell, visiting professor at Penn State Law School, who also commented - UPDATE: see his original comments below the fold], I'm a former Big Law partner, and I was the VP & GC of a Fortune 850, NYSE company. I'm less likely than Ray (based on his comments) to try to argue that today's paradigm of legal scholarship has anything more than a passing relevance to the in-the-trenches practice of law. But that's not really the point. Practitioners have to understand that we started down a particular path over a hundred years ago when C.C. Langdell came up with the idea that law could be derived inductively from the reading of cases, akin to the scientific method in other disciplines. (There's a social science term called "path dependency" and it has to do with how hard it is to get off a particular path once you are on it; as an example, if you take a job at the beginning of your career with Weil,Gotshal, you've created different path dependencies for future choices than if you take a job with Sooem & Servem in Elko, Nevada.) Law became a subject for instruction in research universities, not merely for the training of lawyers, and with that developed a community of legal scholars, developing, indeed evolving, their own standards for what constituted advancement in knowledge. For a long time, that had to do mainly with legal doctrine, and academic energy devoted itself to the great treatises, and the great doctrinal advances like the UCC.
The problem with comparing law to medicine (as I did, and to which Paul links) is that while the practice of medicine is both art and science, the science is still hard science, and, moreover, the linkage between cutting edge theoretical research and its practical application is far more intuitive. For example, my son has his name on a paper that deals with work on the very subtle science of diabetic neuropathy in cells - how at a molecular and cellular level does the glucose cause the problems it does? Even if the research isn't directed at a cure, we can understand it in the web of scientific research that leads to useful advances and human flourishing.
That's far harder to do in law, and one only needs to scan the titles of the last 2,000 or so papers uploaded onto SSRN to confirm the hypothesis. Moreover, there's a lot of work produced and in spotty quality because of two structural features of academic law as it has moved down its particular path: (a) the sheer number of law professors compared to other disciplines, because the training of professionals subsidizes the theoretical pursuits; and (b) the plethora of student-edited (and non-peer-reviewed) journals. In short, law as academic discipline is still finding its place in the world. Given a hundred years of path dependence, however, "solving" the problem of legal education isn't going to occur without some acknowledgment of the academic paradigm. For example, we could certainly, as a logical possibility, move to a world in which most lawyers are trained in vocational institutes, and make theoretical "law and..." part of more traditional humanities and social science Ph.D. programs. But I suspect that most lawyers like their ties to the status of research universities that spawned most of them.
Monday, August 17, 2009
An interesting case from Montana involved a medical malpractice action brought by a widow on behalf of her late husband's estate against a doctor and a clinic. The plaintiff's attorney delivered the closing argument as a first-person narrative that the lawyer described on appeal as "[c]hanneling...as though he was the decedent."
When he started to describe what it felt like being autopsied, "[t]his got to be more than some could bear." A juror thought she would pass out and was attended to by the defendant, plaintiff's co-counsel (who is also a physician) and three other jurors who also were nurses. Plaintiff then sought a mistrial, which was denied. An alternate juror was seated and a defense verdict was returned.
The Montana Supreme Court reversed. The jury here saw the defendant "reacting to a real-life situation and apparently successfully delivering life-saving care. The effect on the jury is immeasurable, whether or not the individual jurors admit it or even consciously know it." The court made it clear that "no fault is assigned to any of those who responded to the ill juror in the courtroom."
How many of us can say that we were able to get a new trial because our closing argument made a juror violently ill? (Mike Frisch)
Tuesday, July 28, 2009
The Massachusetts Supreme Judicial Court decided the following two questions in the affirmative:
We consider in the present case, as a matter of first impression, the scope of the Massachusetts attorney's lien statute (lien statute), G.L. c. 221, § 50, vis-à-vis patent prosecution work. The United States Court of Appeals for the First Circuit has certified the following questions to this court, pursuant to S.J.C. Rule 1:03, as appearing in 382 Mass. 700 (1981) [FN2]:
"1. Does [G.L. c. 221, § 50,] grant a lien on patents and patent applications to a Massachusetts attorney for patent prosecution work performed on behalf of a client?
"2. If [G.L. c. 221, § 50,] does grant a lien and the issued patents or patent applications are sold, does the attorney's lien attach to the proceeds of the sale?"
The court concluded:
By its substantial amendment of the lien statute in 1945, the Legislature significantly expanded an attorney's right to recover legal fees for services rendered to a client in a variety of proceedings. The language of G.L. c. 221, § 50, states that an attorney shall have a lien for reasonable fees and expenses not only from the "authorized commencement of an action, counterclaim or other proceeding in any court," but also from the "appearance in any proceeding before any state or federal department, board or commission." When an attorney files a patent application for a client with the USPTO, that action constitutes appearing in a proceeding before a Federal department. [FN6] See 35 U.S.C. § 1 (2006) (USPTO was established as agency of United States, within Department of Commerce); 37 C.F.R. § 10.1 (2008) ("proceeding" before USPTO includes application for patent). Moreover, the broadening of the statute suggests a recognition by the Legislature that attorneys are entitled to be compensated for the work they perform that falls outside the purview of traditional litigation "in any court."
In assessing the scope of an attorney's lien for reasonable fees and expenses, the language of G.L. c. 221, § 50, provides that the attorney shall have a lien "upon his client's cause of action, counterclaim or claim, upon the judgment, decree or other order in his client's favor entered or made in such proceeding, and upon the proceeds derived therefrom." In the context of patent prosecution work, the patent application is the client's "claim." It is a request for recognition of a property right whereby an inventor can exclude all others from making, using, or selling a patented invention for a designated period of time. Therefore, in accordance with the first phrase of the "upon" clause, when rendering legal services to a client to secure a patent, an attorney can assert a lien on the patent application when it is filed with the USPTO, and the lien necessarily remains attached to the subsequently issued patent, protecting the attorney's right to compensation.
Contrary to the argument of the liquidating supervisor, the language of G.L. c. 221, § 50, does not require a "judgment" in order for an attorney's lien to attach. The repetition of the word "upon" in the statute describes three separate and independent bases for the assertion of an attorney's lien, namely (1) "upon [the] client's cause of action, counterclaim or claim," (2) "upon the judgment, decree or other order in [the] client's favor entered or made in such proceeding," and (3) "upon the proceeds derived therefrom." Interpreting the statute as requiring a "judgment" before a lien can attach, would render superfluous the words in the first "upon" clause. As we have already stated, every word of a statute must be given effect. See Bankers Life & Cas. Co. v. Commissioner of Ins., supra. Had the Legislature intended to limit the parameters of the lien statute to only those instances when an attorney has obtained a judgment, then the Legislature simply would have said that the attorney shall have a lien for his reasonable fees and expenses "upon the judgment, decree or other order in his client's favor," and nothing more.
The case is Ropes & Gray LLP v. Jalbert, decided July 28, 2009. (Mike Frisch)
Tuesday, July 14, 2009
The Wisconsin Supreme Court has held that a lawyer who had drafted a series of wills for his client that contravened a judgment in a prior divorce case may be liable to third party beneficiaries who did not benefit from the will to the extent ordered in the divorce case. The court rejected claims asserted by the lawyer of good faith and qualified immunity. The court affirmed the dismissal of related claims that were predicated on a theory of negligence. The key facts:
Robert Tensfeldt and his first wife, Ruth, had three children——Christine, Robert William, and John. When Robert and Ruth divorced in 1974, they entered into an agreement stipulating to various terms of the divorce. The divorce court determined that the stipulation was "fair and reasonable" and incorporated the stipulation into the divorce judgment.
One of the terms of the stipulation provides that Robert would make and maintain a will leaving two-thirds of his net estate to the children:
Will in Favor of Children: Simultaneously with the execution of this Stipulation, [Robert] shall execute and shall hereafter keep in effect, a Will leaving not less than two-thirds (2/3) of his net estate outright to the three adult children of the parties, or to their heirs by right of representation. Except as herein provided, [Robert] shall have the right to make such disposition of his estate as he may desire, except as limited herein, and further, except as limited by the requirements set forth in [the provision dealing with unpaid alimony.] As used herein, the term "net estate" shall mean [Robert's] gross estate passing under his Will (or otherwise, upon the occasion of his death), less funeral and burial expenses, administration fees and expenses, debts and claims against the estate, and Federal and State taxes.
Robert married his second wife, Constance, in 1975. They remained married until Robert's death in 2000. Robert and Constance had no children together, although Constance had three children from a previous marriage. In 1978, Robert executed a will that was compliant with the stipulation and order——one-third of the net estate went to Constance, and two-thirds of the net estate went to his children or their issue.
In 1980, Robert retained Attorney...to provide estate planning services. It is undisputed that Robert made [the attorney] aware of his obligation to his children from the outset. When Robert initially met with [him], he gave the attorney a copy of the divorce judgment and stipulation. [The attorney] told Robert that he had three choices: comply with the stipulation; negotiate with the children to alter his obligation; or ignore the stipulation, knowing that the children might contest Robert's will upon his death. Robert chose the third option, and in 1981, [the attorney] drafted an estate plan that did not leave two-thirds of the net estate outright to the Tensfeldt children.
After Robert executed the non-compliant estate plan, [the attorney] received a letter from Robert's divorce attorney, J.M. Slechta. Attorney Slechta wrote:
Since you have drafted a will for Mr. Robert Tensfeldt of Oconomowoc, I recalled that in his divorce in 1974 in which proceedings I represented him, it was agreed in the Stipulation made part of the judgment, some restrictions on the disposition of his estate . . . . Realizing this might have some effect upon the disposition which you have proposed I am enclosing a copy of such stipulation for your examination. There does not seem to be any sanction against disposition of assets during his lifetime.
[The attorney] wrote back:
Your letter . . . asks whether Mr. Tensfeldt's most recent Will . . . violates his obligations under that decree . . . .
In my opinion, Mr. Tensfeldt's present Will needs some revision in light of the obligations under the divorce decree, of which I was unaware until receipt of your letter. On the other hand, the so-called "Economic Recovery Tax Act of 1981" does, as you know, offer significant new estate and gift tax advantages which may be available to Mr. Tensfeldt to some extent despite the decree.
Robert and [the attorney] never changed the estate plan to bring it into compliance with the divorce stipulation and judgment. Even though Robert and Constance moved to Florida in 1985, they continued to retain the attorneys at [the attorney's firm] the planning. Over the course of 12 years, [the attorney] drafted and executed a series of revisions to the plan for Robert, including 92 plan that was in effect when Robert died. None of the revised plans left at least two-thirds of his net estate outright to the three adult children of his first marriage.
A concurring/dissenting opinion would hold:
I write separately for three reasons: (1) I conclude that the plaintiffs' claim against [the attorney], based on aiding and abetting Robert in allegedly violating a provision of a 1974 divorce judgment that required him to will two-thirds of his net estate to his three adult children, fails to state a claim on which relief can be granted because the estate planning provision of the divorce judgment exceeded the circuit court's subject matter jurisdiction; (2) I conclude that [the attorney] was immune from liability in drafting Robert's 1992 will because [the attorney] proceeded in a good faith belief that the provision in the 1974 divorce judgment that required estate planning in favor of the adult children was void from its inception, as a judgment; and (3) I conclude that even if I were to assume, arguendo, that the directive to make a will in the 1974 divorce judgment were enforceable when made, Wis. Stat. § 893.40, a 20-year statute of repose, precluded actions on the divorce judgment after December 5, 1994. Therefore, the divorce judgment had no effect, as a judgment, in 1999 when Robert reaffirmed the will that he made in 1992, and it had no effect at his death in 2000. As a result, the aiding and abetting claim against [the attorney] must be dismissed. Because the majority opinion concludes otherwise, I respectfully dissent from that portion of the majority opinion that addresses the aiding and abetting claim.
Thursday, July 2, 2009
[posted by Bill Henderson, crossposted to ELS Blog]
Paul Lippe, a well-known Silicon Valley GC and founder of Legal OnRamp (LOR), recently posted an essay on the Am Law Daily that essentially argues that law schools, at least in their present form, are not relevant to the future of law. [Lipshaw recently opined on Lippe as well.] Here is Paul's opening graph:
According to Paul, it is not that we are working on irrelevant stuff. It is worse than that: we are enjoying a comfortable living while loading our students up with debt and having a low opinion of practicing lawyers and the clients they service. Paul recounts a recent meeting with law school deans in which he "asked the question, 'If you decided the purpose of law school was to maximize the comfort and income of the faculty, what would you do differently?' The answer: 'Nothing.'"
In contrast, the gravamen of Lippe's remarks are about thought leadership and the ability to identify future solutions to macro-level problems. Consider the following trend-lines, which are representative of the types of issues that Lippe often discusses in his LOR and Am Law Daily columns:
- Nature and Cost of Civil litigation. With the proliferation of electronic documents, civil litigation is becoming more time-consuming and expensive. Thus, disposition of cases is increasingly influenced by the financial wherewithal to wage prolonged campaigns in court rather than the merits of underlying disputes. A thought leader would be proposing (a) how to re-engineer the civil justice in a way that reduces costs and improves access, or (b) how to anticipate and avoid legal disputes through systems that keep clients out of a broken civil justice system.
- Shifting Nature of Clients. Because of the shifting economics of the profession, an ever
large proportion of law graduates earn their living as "thing" lawyers
rather than "people" lawyer. Believe it or not, in the 1930s, the
dean of Yale Law School was preoccupied with the oversupply of lawyers.
Why? Because the majority of Yale grads became general
practitioners--i.e., people lawyers--within the local New England
economy. See Charles E. Clark & Emma Corstvet, The Lawyer and the Public: An AALS Survey, 47 Yale L. J. 1272 (1938). That world no longer exists. The overwhelming majority of law school graduates will
serve as "thing" lawyers, either for government, private industry, or a
public interest cause. Yet, hearkening back to the time of Dean Clark,
our entire regulatory framework is premised on the idea of a client who
is a single, natural person.
Under Lippe's thought-leader ideal, members of the legal academy would be re-conceptualizing the assumptions underneath lawyer regulation and proposing an institutionally coherent strategy for altering the regulatory landscape in a way that simultaneously helps ordinary citizens, business, and the democratic process. In theory, we've got the time, resources, and brain power. Where is the leadership?
- Cost and Quality of Legal Education.
Over the last 30 years, the cost of a legal education has increased
approximately three times faster than the average household incomes.
Yet, it is difficult to identify a corresponding innovation within
legal education that justifies the higher cost. A thought leader
conceives of ways to reduce the cost of legal education or equip
graduates with a larger skill set that is likely to provide a
substantial return on investment. Here, I am not talking MacCrate-type
skills, as important as they might be. Rather, I am thinking
legal-process engineering and the ability to standardize and
commoditize legal products in a way that increases predictability and
drives down cost. See, e.g., Richard Susskind's collected works.
More after the jump ...
Monday, June 29, 2009
Posted by Jeff Lipshaw
An op-ed by Paul Lippe (no relation) at the Am Law Daily on what law schools ought to do to cure THE PROBLEM has gotten a fair amount of buzz in the blogosphere, including from our own Bill Henderson.
Here's my quick reaction:
1. The descriptions of Phases I to III (reading law; Langellian case method; "law and ...") seem accurate to me.
2. This statement strikes me as a relatively fair generalization:
Even in 1981, when I went to law school, the faculty generally held law firms in low regard, and clients were presumed unethical without the constant guidance of lawyers (when I spoke to a law school dean the other day, she immediately equated client with "Enron"). It's nuts for law school to be primarily about understanding appellate decision making and not at all about understanding clients.
This is particularly the case when discussing the politically-infused area of corporate governance. I still marvel at individuals in various institutions (academia, Congress, state governors, corporations) who have no compunction about calling the motives of other individuals in other institutions into question (i.e. conflicted, greedy, short-sighted, etc.) without stepping back and looking at their own. For example, I'm still not convinced that faculty governance has any moral superiority over corporate governance, and clearly Governor Sanford's recent escapade tarnishes the purity of the bully political pulpit. I'm willing to accept a middle ground, which is that none of us embodies an Archimedean moral fulcrum. Or to quote Robert Burns: "O wad som' pow'r the giftie gie us, to see oursels as ithers see us."
3. Mr. Lippe says:
-A much more empirical approach to practice, forcing much deeper inquiry, rather than just trotting out hypotheticals and issue-spotting--e.g., if choosing AAA arbitration is the right dispute resolution clause, do we know that a higher percentage of deals with no arbitration clause ended in a contentious dispute?
This statement strikes me as not fully thought out, but certainly an area in which inquiring minds ought to be engaged (I try to be, as evidenced in this recent piece about legal "cures" to social problems). First, I'm not sure we've fully probed the empirical foundations of statements of this sort enough to use them as the basis for advice. You have a rare form of cancer. Overall, the cure rate with the best treatment is 20%. We can at least make some fairly reliable predictions as a result of natural science, to get at real cause-and-effect. As a general matter, that's far more challenging when we draw social science conclusions. Second, the analogy to medicine highlights the issue. Is the information a helpful piece of data in deciding whether to take the treatment? My son, Matthew, starts med school in six weeks, with a beginning unit that touches on evidence-based medicine. My guess is that data is helpful, but not ultimately dispositive, in making forward-looking judgments about care.
Saturday, June 20, 2009
Posted by Jeff Lipshaw
My life partner now of thirty years, Alene, knows me too well. She just finished David Hackett Fischer's (left) massive biography, Champlain's Dream, and walked into the office to show me Fischer's last couple of pages, and in particular this:
Champlain argued that a leader must be prévoyant, a word that has no exact equivalent in modern English. His idea of prévoyance was different from foresight in its common meaning. It is not a power to foresee the future. To the contrary, prevoyance was the ability to prepare for the unexpected in a world of danger and uncertainty. It was about learning to make sound judgments on the basis of imperfect knowledge. Mainly it is about taking a broad view in projects of large purpose, and about thinking for the long run.
What is really cool about this, for one thing, is the accessibility of the source materials. I was curious about what Champlain actually said on the subject, and Fischer's annotations take you back to the online resources of the Champlain Society in Toronto, where in a couple clicks, you arrive at the very page where Champlain used the word preuoyant in the original French.
There's more than a micro and a macro nugget of wisdom for lawyers and regulators here. The micro has to do with a theme we talked about last week at the AALS Mid-Year Conference on the basic business associations course, and on which I previously blogged:
As to the conception of business law and lawyering, I noted that the data of the world doesn't just organize itself; there is a relationship between the observer and the observed in which the observer brings something to the party. The predominant approach within the academy is to be, as Ronald Gilson observed, entomologists studying the beetles, and Usha had it right: entomologists telling the beetles how to BE beetles. It means academic conceptions of the law and its role are retrospective, objective, litigious, and analytical, while the practice conceptions of transactional law are forward-looking, subjective, transactional, and strategic/tactical. Moreover, what academic business law usually leaves out is the integration of doctrine, and the law itself, into the business (or Flog) game, which means dealing with (a) the exercise of good judgment, and (b) the limits of the law as means to the ends of the game.
Champlain seems to have had the same thing in mind for mariners: you have to be a master of the detail (pricking the charts, knowing longitude and latitude, selecting food, understanding the construction of the ship, etc., etc., etc.,) but "[b]esides what is said above, a good sea-captain ought not to forget anything necessary [to be done] in a sea-fight, in which he may often find himself engaged. He should be brave, foreseeing [preuoyant], prudent, governed by good sound judgment, taking every advantage he can think of, whether for attack or defence, and if possible keep windward of his enemy."
That exercise of judgment is a subtle trick, because Champlain makes it clear that the "wise and cautious mariner ought not to trust too fully to his own judgment" on important decisions, but to "take counsel with those whom he recognizes as the most sagacious, and particularly with old navigators . . . for it is not often that one head holds everything, and, as the saying goes, experience is better than knowledge." At the same time, there is a place for individual mettle, for when there is real danger "you must display manly courage," use a "steady voice," and "dispel fear from the most cowardly bosoms."
The macro has to do with foresight or prévoyance itself, and how it applies to big crises like the present financial meltdown. Not to press the point too repeatedly (well, okay, if I must), but as I have just argued in a newly posted piece on the epistemology of the financial crisis, and on which topic David Zaring has some sage comments, politicians and regulators, like generals, are usually fighting the last war. Sarbanes-Oxley, as well as the "money-loosening" that followed the bursting of the Internet bubble are examples. Why it is so hard (despite the couple of lucky or prescient souls who saw it coming, but then again, I've hit long shots at the race track too) to regulate systemic risk looking forward rather than backward? The gist of the metaphor is that it's awfully hard to prescribe the medicine when you are still trying to figure out what the disease is!
Friday, June 19, 2009
An attorney who had sued for inspection of public records and prevailed is not entitled to attorney fees for representing himself, according to a decision of the Oregon Court of Appeals:
The ordinary meaning of "attorney fee," then, is the price demanded by an attorney for services rendered to a separate client entity. We find nothing in the text or context of ORS 192.490(3) to suggest a different meaning for that statute. The parties do not supply a legislative history of the statute indicating that an unordinary meaning was intended.
Our understanding of the ordinary meaning of "attorney fees" is reinforced by decisions from other jurisdictions interpreting similarly worded attorney fee provisions in public records disclosure laws. For example, the District of Columbia's public records disclosure law provides that, "[i]f a person seeking the right to inspect or to receive a copy of a public record prevails in whole or in part in such suit, he or she may be awarded reasonable attorney fees and other costs of litigation." DC Code § 1-1527(c) (1992 Repl). In McReady v. Dept. of Consumer & Regulatory Affairs, 618 A2d 609, 612 (DC 1992), the court interpreted that statute and followed the federal rule that no fees could be awarded to a pro se litigant, citing the United States Supreme Court's holding in Kay v. Ehrler, 499 US 432, 111 S Ct 1435, 113 L Ed 2d 486 (1991) (precluding awards of fees in section 1983 cases to persons who appear pro se, whether or not they are attorneys).
Thursday, June 11, 2009
The Florida Supreme Court has adopted amendments to the rules governing the Bar that permit certification of specialty in the areas of education law and adoption law. The amended rule, which takes effect immediately, is attached to the court's order. (Mike Frisch)
Friday, May 29, 2009
The Kansas Supreme Court reversed a Court of Appeals decision and ordered a new trial in a medical malpractice case. The trial court had granted a motion for new trial to a defendant doctor who was alleged to have negligently performed an adult circumcision. The jury had found the doctor 54% at fault (a delicate calculation, I am sure) and awarded almost $2 million in damages for past, present and future suffering.
The court here found, among other things, that the court of appeals had improperly circumscribed (no pun intended) the authority of counsel to conduct post-trial inteviews with the jurors:
...we conclude the Court of Appeals majority overstepped clear precedent in narrowing the window of opportunity for postverdict communication between counsel and jurors. Under Supreme Court Rule 169, attorneys may discuss a trial with willing jurors after their discharge from jury duty and may do so without seeking permission from the district judge unless contrary orders have been given. In this case, defense counsel and counsel's representative did not err by conducting telephone interviews of jurors after the trial.
Tuesday, May 19, 2009
From the web page of the North Dakota Supreme Court, reporting the holding of a case decided yesterday:
A hearing officer includes an agency head when presiding in an administrative proceeding, or any other person designated to preside in an administrative proceeding.
The case involved a workers compensation claim. The corporate defendant was represented by lawyers licensed only in Ohio. The lawyers had sought and obtained reconsideration of a prior award based on the contention that the plaintiff was an independent contractor. Here, the court found that the conclusion favorable to the corporation was void because no North Dakota lawyer had entered an appearance for the corporation.
The court's decision is linked here. (Mike Frisch)
Thursday, May 14, 2009
In a 71 page decision, the New Jersey Supreme Court affirmed the dismissal of claims against a law firm that had been instituted by a defendant in a suit that the law firm had filed. The case had its genesis in a dispute between the owner of the Surfrider Beach Club in sea Bright and their across-the-street neighbor. The suit against the neighbor and her daughter was brought by a firm associate after reviewing a memo from a summer associate and conducting supplemental legal research. The complaint alleged defamation, tortious interference with economic opportunities and other causes of action. A jury verdict was returned against some defendants but reversed by the Appellate Division.
Here, the court notes that suits brought against counsel by opposing parties are disfavored: "Generally, there is a reluctance to permit a nonclient to sue an adversary's attorney because of the concerns that such lawsuits can chill the zealous advocacy an attorney owes his or her client." The court concluded that the record left no doubt that the client's disclosures to the lawyers were full and fair and that the opposing party could not demonstrate that the law firm actions were malicious or for an improper purpose. (Mike Frisch)
Tuesday, April 7, 2009
The North Carolina Court of Appeals affirmed a criminal conviction in a murder case, rejecting the contention that the trial judge failed to intervene in the prosecutor's closing argument:
Defendant contends that the trial court erred by failing to intervene ex mero motu during the prosecutor's closing remarks. After reviewing the prosecutor's statements, we conclude that the remarks were not grossly improper, and therefore, do not rise to the level of prejudice that would warrant a new trial.
Because defendant failed to object to the prosecutor's remarks at trial, our review is limited to “'”whether the remarks were so grossly improper that the trial court committed reversible error by failing to intervene ex mero motu.”'” State v. Taylor, 362 N.C. 514, 545, 669 S.E.2d 239, 265 (2008) (quoting State v. McNeill, 360 N.C. 231, 244, 624 S.E.2d 329, 338, cert. denied, 549 U.S. 960, 166 L. Ed. 2d 281 (2006)). Pursuant to this standard, “'“only an extreme impropriety on the part of the prosecutor will compel [the] Court to hold that the trial judge abused his discretion in not recognizing and correcting ex mero motu an argument that defense counsel apparently did not believe was prejudicial when originally spoken.”'” Id. (citations omitted).
In the present case, the prosecutor made the following closing argument to the jury:
You know who committed this crime. You know how it was committed. Your difficulty is going to be in applying the law. And I say your difficulty. I hope you don't have any difficulty, but I anticipate you will, because you know that when you find this man guilty, he goes to prison for the rest of his life.
Mercy? The State is not asking you to execute this man. They're not seeking the death penalty. That's a lot more mercy than was shown this 13 year old. A lot more mercy. We're asking you to find him guilty and let him spend the rest of his life in prison, so another 13 year old boy isn't innocently gunned down.
Defendant contends that the prosecutor's remarks were grossly improper because the statements suggested that convicting defendant would have a general deterrent effect on the conduct of others. During closing remarks, the prosecution may not argue that convicting the defendant will have a general deterrent effect; however, “the prosecution may argue specific deterrence, that is, the effect of conviction on the defendant himself.” State v. Abraham, 338 N.C. 315, 339, 451 S.E.2d 131, 143 (1994). The prosecutor's closing remarks asked the jury “to find [defendant] guilty and let him spend the rest of his life in prison, so another 13 year old boy isn't innocently gunned down.” The purpose of the prosecutor's argument was to convince the jury to convict defendant to specifically deter defendant's unlawful behavior. As such, we conclude that the prosecutor's statements were not grossly improper.
Assuming arguendo that the prosecutor's argument was grossly improper, given the amount of evidence against defendant, it could not have been prejudicial. During trial, the State presented overwhelming evidence of defendant's guilt, including defendant's admissions to the police that he and Sterling planned and executed the robbery and that Sterling shot both Tam and Phi Nguyen. Moreover, this evidence was uncontested by defendant at trial and on appeal. Based on this evidence, the prosecutor's statements were not prejudicial, because it was unlikely that his statements impacted the jury's verdict. We conclude that the prosecutor's remarks were not so grossly improper as to require ex mero motu action by the trial court. Moreover, even if the remarks were improper, they were not prejudicial because the record provides sufficient support for defendant's convictions. Accordingly, we hold that the trial court did not err by failing to intervene ex mero motu during the prosecutor's closing remarks.
LawGuru defines the Latin phrase as follows:
Mere motion of a partys own free will. To prevent
injustice, the courts will, ex mero motu, make rules and orders which the
parties would not strictly be entitled to ask for.
Tuesday, March 24, 2009
A lawyer who negligently fails to draft a will for a client is not liable for legal malpractice based on claims made by the intended beneficiaries of the estate, according to a decision of the South Carolina Supreme Court. The court found no policy basis to depart from a strict privity requirement that limits legal malpractice claims to former clients:
Our decision today not to impose a duty on an attorney in favor of a prospective beneficiary for alleged negligent failure to draft a will follows the law in other jurisdictions. We find persuasive the reasoning of decisions from New Hampshire, Connecticut, and Florida. We reference these three jurisdictions, for these states recognize generally that an attorney owes a duty to a non-client intended beneficiary of an executed will where it is shown that the testator’s intent has been defeated or diminished by negligence on the part of the attorney, resulting in loss to the beneficiary. Having relaxed the traditional privity requirement in legal malpractice claims, these states nevertheless draw the line and refuse for compelling policy reasons to permit a malpractice claim by a non-client for negligent failure to draft a will.
The client had consulted with the attorney and had filled out a form that had designated the plaintiffs as beneficiaries. Howver, she died before a will was executed and her estate was probated without any will. (Mike Frisch)
Tuesday, March 17, 2009
In an opinion issued today, the Indiana Supreme Court affirmed the conviction of a defendant who had claimed denial of his right to self-representation. the defendant was found competent to stand trial but denied his request to represent himself because of his severe mental illness. The case (Indiana v. Edwards) had been remanded from the United States Supreme Court.
The court here concluded that the record established that the defendant suffered from a severe mental illness that rendered him incompetent to conduct the trial proceedings by himself. In addition to the conclusions of mental health professionals, the defendant "produced a litany of disorganized and incoherent motions" to the trial court. Although the mental health evidence was in conflict, "the trial court had before it the record of erratic performance that gave no confidence that whatever Edwards's state as of a given moment, it might be a transient condition...these circumstances support the trial court's determination that Edwards suffered from severe mental illness such that he was not competent to represent himself." (Mike Frisch)
Friday, March 13, 2009
The Kansas Supreme Court found plain but harmless error in a prosecutor's closing argument in a felony murder trial. The prosecutor had argued:
"They [sic] saying that Brandi shook the baby when? She shook the baby that night while she's in there feeding her putting her to bed, is that what they want you to believe? They are saying that there's a reasonable doubt about that, that you don't know who did it. Well, you do when you look at all the evidence. And another thing is he's no longer presumed innocent. Case is in. Evidence is in. At this point based on everything that we've proved, he's guilty." (Emphasis added.)
The court held:
In this case, immediately after saying that the defendant was no longer presumed innocent, the prosecutor stated: "Case is in. Evidence is in." A rational juror could easily interpret the statement, in context, to mean that once the evidentiary portion of the trial is complete, the presumption of innocence no longer applies. Accordingly, we find that under the first step of the analysis, the prosecutor exceeded the limits of approved rhetoric. (citations omitted)
While we find that viewing the comment in its context does not save it from being error, the context does favor the State in the second step of the analysis. It does appear that the prosecutor was attempting to convey that the State had overcome the presumption of innocence by "everything that [it] proved." We see no manifestation of ill will. Moreover, the misconduct did not rise to the level of being so gross and flagrant as to constitute plain error. The comment likely had little weight in the minds of the jurors, and we find that the error was harmless.
The court rejected a number of other contentions in affirming the conviction. (Mike Frisch)
Tuesday, February 17, 2009
Posted by Alan Childress
Paul Koning of the Dallas office of K&L Gates passes along this ABA announcement and link.
The ABA Litigation Section's Professional Liability Litigation Committee is proud to announce the launch of its 50 State Survey of Legal Malpractice Law. The Survey is a free, internet-accessible compendium of state-specific articles detailing the elements, defenses and key issues regarding claims against lawyers. Because legal malpractice laws vary significantly from state to state and often involve special doctrines affecting limitations and proof, this centralized resource promises to be invaluable to professional liability lawyers, legal malpractice insurers, and trial lawyers in general. The Survey is the only known collection of its kind, and is available without charge to all members of the Litigation Section. To access the 50 State Survey of Legal Malpractice Law, visit the home page of the Professional Liability Litigation Committee or click here.
Paul, shown right, added that "members of the legal ethics community might be interested in a project I have been working on for some time as Co-Chair of the ABA Professional Liability Litigation Committee." (Yes, I would think so!) The other co-chair is Pamela Bresnahan of Vorys DC. Paul also provided as an example his own extensive chapter on Texas law, coauthored with Brett Basden: Download legalmalpracticetexas.pdf. Thanks, Paul.